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TMI Blog2016 (1) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE - [2011 (1) TMI 664 - CESTAT, AHMEDABAD] would cover the issue in hand. - Decided in favor of assessee. - Appeal No. E/2163/05 - - - Dated:- 1-12-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the Petitioner : Shri T.C. Nair, Advocate For the Respondent : Shri N.N. Prabhudesai, Supdt. (AR) ORDER Per: M.V. Ravindran This appeal is directed against order-in-appeal BR(2735)117/M.I./2005 dated 18.04.2005. 2. Brief facts of the case are that the appellant was a composite mill engaged in the manufacture of yarn and grey fabrics; entire production of grey fabrics was exclusively for export and only marginal quantity of the production was removed to their multi locational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much the provisions of Rule 57C has been applied for demanding the amount while the provisions of Rule 57CC of Central Excise Rules, 1944 would be applicable. He would then takes us through the provisions of Rule 57CC and more specifically to the sub-rules (3) and (5) and submits that they have complied with the conditions of the Rule 57CC in toto. He would submit that despite this, the first appellate authority has held that appellant is required to pay 5% or 10% as the case may be as the goods cleared for export were exempted and they had availed CENVAT credit on yarn procured locally. 4. Learned D.R. would submit that appellant should not have availed the CENVAT credit of the duty paid on yarn for a simple reason that the said yarn wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished goods. 6.2 At the outset we find that both the lower authorities as well as the learned D.R. are incorrect in their submissions and the findings for more than one reason. 6.3 Firstly, the provisions of Rule 49A of Central Excise Rules, 1944 talks about discharge of duty liability on the yarn manufactured within the factory and consumed in the manufacturing of grey fabrics along with interest. It is undisputed that appellant herein has complied with the conditions mandated under Rule 49A of the Central Excise Rules, 1944. In short, by doing so appellant has discharged duty liability on yarn which is manufactured in-house. 6.4 Secondly, we find that the yarn which is procured by them locally is duty paid remains undisputed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said final products or not, the manufacturer shall, unless the provisions of sub-rule (9) are complied with, pay an amount equal to eight per cent. Of the price (excluding sales tax and other taxes, if any, payable on such goods) of the second category of final products charged by the manufacturer for the sale of such goods at the time of their clearance from the factory. (3) The provisions of sub-rule (1) shall not apply to final products falling under Chapters 50 to 63 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). (5) In the case of final products referred to in sub-rule (3) or (4) and excluded from the provisions of sub-rule (1), the manufacturer shall pay an amount equivalent to the credit of duty attrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red this submission in its correct perspective. 6.8 Thirdly, we do find strong force in the contentions raised by learned Advocate that for the purpose of export, non-execution of bond or LUT may not be required as long as the goods are cleared for export or exported. 6.9 We find that in the case in hand there is no dispute that the grey fabrics which were manufactured and cleared for export, are exported. The ratio of the judgement of this Tribunal in the case of Well Known Polyesters Ltd. v. CCE - 2011 (267) ELT 221 (Tri. - Ahmd.) would cover the issue in hand. The ratio is in para 6 which we reproduce. 6. The second ground taken for rejection of the refund claim is that refund under Rule 5 of Cenvat Credit Rules, 2004 is permi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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